Immigration filing fee hikes set to take effect Oct. 2 for employers of foreign national workers were temporarily halted last week by a U.S. federal judge.

Judge Jeffrey S. White of the U.S. District Court for the Northern District of California blocked U.S. Citizenship and Immigration Services (USCIS) from implementing the fee increases for a variety of reasons, including:

• That the agency did not adequately follow rule-making procedures.
• That it failed to consider the negative impact of the higher fees on low-income applicants (the fee increase rule included increases beyond employment-based immigration categories, including for asylum and naturalization).
• That the acting secretary of the Department of Homeland Security (DHS), of which USCIS is a part, had been improperly elevated to his role at the time the rule was issued.

Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis, explained that the judge's decision "was based on a finding that Chad Wolf's appointment to the position of acting secretary of Homeland Security was invalid under the rules of succession and, therefore, the new rule itself was invalid."

The judge also determined that there likely were violations of the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations. "The judge stated that the rule was 'arbitrary and capricious' because, among other things, the administration failed to explain in detail how it determined that the fee increases were needed and did not adequately consider the impact on applicants," Neifach said.

Lori Chesser, an immigration attorney in the Des Moines, Iowa office of Davis Brown, noted that the leadership succession issue at DHS is likely to come up again in other immigration cases. "If that point is proven after a full hearing, more rules made recently by the immigration agencies could be held invalid," she said.

Wolf was appointed acting head of DHS in November 2019.

The Immigrant Law Resource Center and seven other organizations had sued over the fee changes, primarily on the grounds that the increased costs were too high for the low-income immigrants the groups work with. "While the new fee rule affects and increases fees for many business-related immigration petitions, this case was focused on the increase in naturalization fees, the addition of asylum fees and the change in fee waivers," Neifach said. "Nevertheless, the judge chose to enjoin the entire rule."

The lawsuit that the immigration groups filed challenging the fee rule is pending. The next hearing is scheduled for Dec. 4.

Everything Stays the Same—for Now

USCIS issued the rule adjusting fees by an average increase of 20 percent on Aug. 3. The agency proposed splitting up Form I-129—used by employers to petition for guest workers under the H-1B, H-2A, H-2B, L-1, O and TN visa classifications—into different forms with different fees imposed on each visa type. Currently, a fee of $460 covers all temporary-worker visa petitions.

The new filing fees would have been:

• For H-1B visas, $555.
• For L-1 visas, $805.
• For O visas, $705.
• For TN visas, $695.
• For H-2A visas, up to $850.
• For H-2B visas, up to $715.

USCIS had planned to publish updated forms as well, including a new Form I-129 and a new Form I-765, Application for Employment Authorization. Fees for applications for employment authorization were scheduled to rise from $410 to $550.

Employers with a high proportion of H-1B and L-1 employees would have been required to make additional fee payments when filing petitions for these workers.

In addition to fee increases, premium processing—whereby employers pay more for expedited service—would have been extended by a week (from 15 calendar days to 15 business days).

"Stopping the fee increase also stopped the use of new forms and the change in premium processing," Chesser said. "This means that premium processing will continue at 15 calendar days, the current forms will be used, and the fees will stay the same—for now."

In Need of Funds

Unlike most government agencies, USCIS is fee funded. According to the agency, the coronavirus pandemic led to a sharp decline in revenue this year, and, at one point, the agency considered furloughing 70 percent of its staff.

"This unfortunate decision leaves USCIS underfunded by millions of dollars each business day the fee rule is enjoined," said USCIS Deputy Director of Policy Joseph Edlow. "USCIS conducted a comprehensive fee review and determined that current fees do not recover the cost of providing services. This is nothing new or abnormal. In fact, the fee rule is two years behind schedule, and is a smaller percentage increase than the previous. In a fee-funded agency such as USCIS, this increase is necessary to continue operations in any long-term, meaningful way."

Premium Processing Changes

Separately, legislation funding the U.S. government through Dec. 11 will raise fees for premium processing while also expanding services to include many additional employment-based case types.

"The legislation that was signed into law to keep the federal government open until the budget is passed included an expansion of the premium processing program to cover many other processes, including change of status and employment authorization documents," Chesser said. When it goes into effect, the premium processing fee will increase to $2,500 from $1,440 for many cases, but not all."

The changes are not yet in effect and await regulations from USCIS.

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